Phylicia Barnes sex tape may be played publicly at murder trial

Jed Kirschbaum

Jed Kirschbaum

Justin Fenton, The Baltimore Sun

If Baltimore prosecutors want to show jurors a video of teenage murder victim Phylicia Barnes and the man accused of killing her engaged in "sexual relations," they must do so in open court, a city judge has ruled.

The ruling, which denied a prosecution motion to close the court during the playing of the tape, came last week after one of three unlisted hearings, but appears in documents available at Baltimore Circuit Court. A public schedule had said a hearing would be held Tuesday.

It is not clear why prosecutors want to show the tape, or whether they still plan to show it following the ruling. Judge Alfred Nance has imposed a gag order prohibiting attorneys from discussing the case.

Michael Maurice Johnson, 28, the ex-boyfriend of Barnes' older half-sister, is scheduled to stand trial later this month for the North Carolina teenager's killing. Jury selection is slated to begin Jan. 22.

Prosecutors have said that Johnson killed Barnes and moved her body in a plastic tub. Barnes was 16 when she disappeared in December 2010, in her sister's Northwest Baltimore apartment. Her nude body was found floating in the Susquehanna River in April 2011, and Johnson was charged a year later.

The Baltimore Sun first reported last month that the video, according to prosecutors, also depicts Barnes' older sister Deena and Johnson's younger brother. It was allegedly found on Deena's cell phone.

Prosecutors said they planned to play the tape during Deena's testimony and wanted to close the courtroom, because two of the people on the tape are minors. But defense attorneys were opposed. WBAL-TV first reported that Nance denied the request.

That ruling came after one of the three unlisted hearings, which occurred Thursday, Friday and Monday. Prosecutors and defense attorneys say they are prohibited from talking about the case because of the gag order, though there was no record of such an order's being imposed.

Nance declined to comment.

Court records show there have been several rulings on a defense motion to compel disclosure of internal affairs records related to the lead detective in the case, Daniel Nicholson IV. Nicholson was suspended by the Police Department the day before Johnson was charged, amid questions about a search he conducted for his own daughter, who had run away from home. Police and prosecutors have said Nicholson remains suspended and under investigation in that case.

Defense attorneys claim Nicholson's actions during that search mirror what they say were improper tactics used during the investigation in the Barnes case. Nance initially ruled Thursday that the records from that investigation should not be disclosed, the court file shows.

But a file regarding Nicholson was apparently turned over after that hearing to defense attorneys. Johnson's lawyers claimed in a motion the next day that the file was incomplete and questioned whether prosecutors "intentionally did not charge Detective Nicholson" to "protect his credibility as a main witness."

Nicholson's attorney has said that Nicholson did nothing wrong.

A closed-door hearing was held Friday, in which Nance ruled that prosecutors and police would have to disclose internal affairs records regarding the investigation into Nicholson's search for his daughter. The state then filed a motion for reconsideration, which was deemed "moot." The court records do not explain why.

Nance did not rule on a motion by the state to exclude as a witness a man who told police he had seen Barnes alive in Cecil County after her disappearance. Defense attorneys intend to call him as an "alibi witness," with prosecutors opposing and saying they did not have sufficient time to investigate his credibility. Court records show that Nance decided to hold the matter under consideration.